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Another Level: All Three Branches of Government in Play

Saturday, February 13, 2016 may be a day that will reverberate throughout the entire 2016 Presidential Election Season. It was on that day that an official in Presidio County, Texas, Cinderela Guevara, declared Associate Supreme Court Justice Antonin Scalia dead of natural causes. Shortly after that pronouncement, a cacophony of Republican voices emerged suggesting, subtly in some cases, emphatically in others, that the Senate would not consider any nominee that President Obama might put forward to fill the seat formerly held by the late Justice.

The Senate Majority Leader, Mitch McConnell, said the American people should have a voice in the selection of the next justice, (and oh, by the way, he implied electing President Obama twice did not qualify to meet that standard); he added the vacancy should not be filled until after a new President is elected. The Majority Leader’s opining was swift and sure, coming about an hour after the Justice’s death was confirmed.

The timing was propitious in that it occurred prior to last Saturday evening’s GOP Debate in Greenville, South Carolina. Following the cues of the Senate Leader, each of the last six men standing in the GOP race (some would argue, to the bottom) for the Presidential nomination opted to protest even the idea of President Obama selecting another nominee for the High Court.

But it did not stop with them. The siren, or if you prefer, dog whistle call circulated around and throughout the GOP universe, especially in the all-important realm of the Senate. A number of Republican Senators weighed in on the subject, including:

Senator Orrin Hatch, Utah – A member of the Judiciary Committee, and potential candidate for The Supreme Court (presumably by a Republican President). Yesterday he said, “There’s no need to bring forth a nominee to succeed Justice Scalia in the politically charged environment of a presidential election year.” He further argued that “The Constitution doesn’t say that you have to do this in a certain constraint,” in comments made to CNN.

Senator Rob Portman, Ohio – He said, “I believe the best thing for the country is to trust the American people to weigh in on who should make a lifetime appointment that could reshape the court for generations.” (Again, I note, the people have spoken, twice!)

Senator Pat Toomey, Pennsylvania – Mr. Toomey said, “Obama insists that he will nominate someone for the court. He certainly has the authority to do so. But let’s be clear – his nominee will be rejected by the Senate.” Alrighty then!

Senator Ted Cruz, Texas – One of the GOP’s leading Presidential Candidates elevated filling Scalia’s vacant seat the centerpiece of his campaign. I guess it’s on now.

On paper, this is a battle the GOP is positioned to win. Their role in considering Supreme Court nominations is advice and consent. Of course, they do not have to approve the nominee. The Senate Judiciary Committee is currently composed of 20 members. Of that number, 11 are Republicans, 9 are Democrats. This is the Committee charged with holding confirmation hearings, and voting whether to send the nominee to the full Senate. The GOP also holds an overall Senate majority, 54-46. As such, Democrats have the unenviable, conceivably impossible task of persuading 14 Republicans to join them in breaking what is sure to be a filibuster.

The math is actually the simple part of the looming decisions on this question. The political calculus is also significant. Control of the Senate will be determined by the outcome of November’s elections. Democrats view Ohio (Portman), Pennsylvania (Toomey), New Hampshire (Kelly Ayotte), and Wisconsin (Ron Johnson) as states the Party can possibly flip in November. As a result, they are highlighting the GOP Senator’s call to wait until next year…and the next President. For example, Ted Strickland, an Ohio Democrat has produced a funding appeal that emphasizes Senator Portman’s position. In it he said:

Senator Portman “has a clear choice to make: He can look out for his Party and D.C. special interests by holding back President Obama’s nominee, or he can do his job for the people of Ohio.

On the other side of the aisle, Democrats had their own observations and tacks. They unfolded a little something like this:

Governor Maggie Hassan, New Hampshire – She criticized Senator Ayotte, arguing that President Obama’s Constitutional right to nominating a replacement is not suspended in his last year in office.

Three Pennsylvania Democrats challenged Toomey and railed against partisanship over Senatorial responsibility. It is clear we face another example of the partisan divide that has shadowed the Obama Presidency.

Senator Dick Durbin, Illinois, Number 2 Democrat in the Senate – Durban notes, “Senate Republicans continue to think that governing is as simple as being against President Obama at every turn. It’s not, and the American people deserve better leadership than they’re getting with this Congress.”

As the early days in the wake of Justice Scalia’s demise pass, Democrats appear to be intent upon trying to pressure the Senate Majority Leader to allow a nominee to move forward. Thus far Senator McConnell has shown no evidence he is likely to relent from his initial position, expressed shortly after the death of Justice Scalia was announced.

A number of the conservative groups that exulted in satisfaction at having had a hand in forcing GOP Speaker of the House John Boehner to step down have questioned Senator McConnell’s loyalty, and insisted that he remain firm in his commitment. We will see.

Michael Needham, Heritage Action – “Senator McConnell is right. Under no circumstance should the Republican Senate majority confirm a Supreme Court nominee as Americans are in the midst of picking the next president. Republican rhetoric condemning President Obama’s willful disregard for the rule of law will ring hollow if they do confirm a nominee.”

In the overarching picture, Republicans and Democrats have argued over the Senate’s production, or lack thereof this year. Any potential action on trade and/or criminal justice reform looks more unlikely than ever. However, the President’s allies are endeavoring to make it clear that if the GOP chooses to ignore or delay the President’s nominee, they will accuse the GOP majority of obstruction, thus framing a salient argument in their case to retake the Senate. It’s safe to say, this will be chess, not checkers.

For his part, President Obama has lifted Justice Scalia’s legal philosophy and injected it squarely into the debate. The Constitutional scholar committed to follow the words and “original intent” of the Constitution by choosing an indisputably qualified nominee. He is flatly rejecting the calls of the GOP to leave the selection to his successor.

The President said he was amused by those members of the GOP who call themselves strict interpreters of the Constitution, and who were citing unwritten precedent about not confirming justices during an election year…in order to justify their position. He went on to say:

“It’s pretty hard to find that in the Constitution. The Constitution is pretty clear about what is supposed to happen now.” To put a finer point on the conversation, the President said, “I expect there to be hearings. I expect there to be a vote. Full stop.” The President made those comments yesterday shortly after two key Senate Republicans expressed some level of doubt about the Majority Leader’s suggestion that there should be no nomination process during an election year.

Some experts noted GOP leaders might have made a tactical error that could incite a public backlash. Republican Senator Charles Grassley, Iowa, head of the Judiciary Committee indicated he might be open to holding hearings on an Obama nominee. He added he’d wait until after the nominee is revealed before deciding on the ultimate course of action.

Thom Tillis, Republican, North Carolina, warned his GOP colleagues that if they rejected the President’s nominee, sight unseen, they might actually be rightly called obstructionist. I suppose time is an arbiter of perspective, even for Republicans.

On Saturday evening Grassley had said it was “standard practice” to not confirm new Supreme Court justices in an election year. He said:

“It only makes sense that we defer to the American people who will elect a new president” in November. I’m sure it is more than somewhat significant that legal experts have cited over half a dozen instances since 1900 in which justices were confirmed during an election year.

Ironically, Senator Grassley was one of the 97 Senators who voted unanimously to confirm Justice Anthony M. Kennedy in February 1988, which just happened to be the last year of the Reagan Presidency. There is considerable speculation not just on whom the President will nominate, but on whether the individual will be a moderate or a liberal. Quite naturally, neither the current Judiciary Committee, nor the Senate would confirm a liberal. However, refusal to confirm the President’s nominee might be used to create a spike in Democratic voters this fall. There may actually be some motivation to take this route because the truth is, the GOP, even if they hold hearings is not likely to approve an Obama nominee, on GP, even if that person were deemed a moderate. IJS!

So, what has already been shaping up as an unpredictable election season just received an added wrinkle. We knew the Executive Branch was up for grabs and there would be a new President next January. Now it looks likely the Legislative Branch may get caught up in the winds of change, as the Senate appears to be in play. Finally, whether this year or next, there will be a new Justice added to the Supreme Court. In the super unlikely event President Obama prevails and his nominee is confirmed, or if not, but a Democrat is elected in November, the majority on the High Court will change hands from Right leaning to Centrist or Left leaning. We have truly reached “Another Level: All Three Branches of Government in Play!”

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